Probate FAQs

How do I know if I need probate when a loved one passes?

The biggest indicator of a need for probate is that you are struggling to gain control of a deceased person’s assets.  Maybe you go to the bank, but they state they need a death certificate and something called “Letters.”  You might list the house for sale, but the real estate agent tells you it’s still in the name of the deceased person, so you need Court authority to sell the house.  These small clues all lead to the same result: probate.

Probate differs from state to state, but in Nevada, it is the court-supervised legal process used to transfer ownership of a deceased person’s assets, settle debts, and ensure that property is distributed to the rightful heirs or beneficiaries. If the individual left a valid will, the court would confirm its authenticity and oversee the administration of the estate according to its terms. If no will exist, Nevada’s intestate succession laws dictate how assets are distributed among surviving family members.  In other words, if your Will won’t say what you want to happen to your assets, then the State law will decide that part for you.

Some of the basic steps of probate include:

  • Filing the Last Will and Testament with the Court (this is called “lodging”)
  • Determining who has authority to act on behalf of the deceased person.  The person named to act in a valid last will and testament has priority, but if no one is named, state law determines who has priority.
  • Informing the Court of the status of the Estate by filing an opening petition.  
  • Notifying heirs (people legally entitled to inherit), beneficiaries (people named to inherit), and creditors (people or companies to whom the deceased person owed money) that the deceased person has passed away
  • Figuring out what assets belonged to the Deceased person.  This may include reviewing records, analyzing if there was a survivorship or beneficiary claim to the asset, etc. 
  • Negotiating, reviewing and paying outstanding debts, expenses, and taxes where required
  • Distributing the remaining property to heirs or beneficiaries either according to the deceased person’s Last Will and Testament or State law.

While probate ensures fairness and accountability, it can also be time-consuming and complex—especially without legal guidance.

Nevada law provides different levels of probate depending on the size and complexity of the estate:

  • Set Aside – Designed for small estates valued under $100,000 and pour-over wills (where a deceased person’s will leaves their assets to a Trust).  This simplified process can help heirs receive assets more quickly and with less expense.
  • Summary Administration – Used for estates valued under $300,000. This streamlined process still involves court oversight but is generally faster and less burdensome than full probate.
  • General Administration – Required for estates valued over $300,000, or when disputes arise. This is the most comprehensive form of probate, involving a higher level of court supervision, creditor claims, and formal administration by a personal representative (executor).

Even if you are not sure if you need to go through probate, it’s important to have this information available to you so you can evaluate whether it’s needed.  If you are not sure, you can always meet with a David Bindrup Law Firm attorney for a cost-free consultation to review the estate assets and determine what (if anything) needs to go through probate.

The cost of probate is determined by the work needed to proceed through the probate process.  Usually, there is a percentage that is set by state law or clients can opt to pay an hourly rate instead.  We prefer to use an hourly rate so that the client only pays for the work that is done.  At your free consultation, we will give you a quote so that you can understand what the cost will be based on your specific set of circumstances.  It’s important to work with a reputable law firm as you are gathering potential costs of probate so that you can rely on the information that is given.  

Often, attorneys will try to downplay the actual expenses or costs associated with probate, and by the time you’re billed?  It’s too late to change your mind because the money is already owed.  Make sure you clarify with an attorney if the quoted fee includes any expenses, what could cause the bill to increase, and what probate generally costs with similar assets.  Using a firm like David Bindrup Law Firm, who has decades of experience in probate, helps ensure that you can rely on the information given because they have been through this process literally hundreds of times before.

Probate officially starts when the first pleadings (legal paperwork) are filed with the Court.  This can be confusing to clients, because if you are working with a firm, it may be some time before anything is filed.  In fact, we’ve had multiple cases where clients were told that an attorney was “working on” their probate, only to discover months later that nothing had been filed!  How quickly probate is filed is important because it ensures that the process begins.  This is important because all the costs of maintaining assets continue to accrue even after someone passes.  Clients are often confused by this, because they assume that the mortgage, utilities or other bills may be “frozen,” because of the death.  However, those fees and expenses continue to increase.  If families are unable to cover the costs for maintaining assets like a house during the probate process, foreclosure procedures may begin, putting the equity of the home in jeopardy.  This is why it’s important to ask any potential attorney how long it will take to get probate filed and what can be done about expenses in the meantime.

Another consideration is that part of the probate process is based on statutory (state law) rules that require the probate to be open for a specified period so that potential creditors have an opportunity to file a claim.  In other words, the later probate starts, the longer it will take to get everything wrapped up.

David Bindrup Law Firm has a strong reputation for navigating the probate process in a swift and timely way, so that expenses are minimized and assets get to the rightful beneficiaries as quickly as possible.

When attorneys are licensed, they are licensed for the entire state, which means that any attorney licensed in Nevada can handle probates in outlying counties like Nye County.  However, what many Las Vegas attorneys fail to realize is all the specifications that are required in Nye County courts.  David Bindrup Law Firm is the only estate planning and probate law firm with a permanent office in Pahrump, where we have practiced for over 10 years.  Because of this experience, we can give you unprecedented resources in navigating the Nye County court system and their specifications which differ significantly from Clark County or other Nevada courts.  We know the judges, we know the processes, and we can assist you through the probate process in a way that no other firm can duplicate.  When you need help, you can count on us.

Probate is not a guaranty when someone dies.  Whether or not an estate (the assets and liabilities of a deceased person) must go through probate depends on how the assets are titled.  For example, if all the deceased person’s assets are titled in the name of valid Trust, those assets will not have to go through probate.  Probate is also not needed if assets have a named beneficiary listed.  However, even in these scenarios, depending on debt and other factors, it is still wise to meet with an experienced probate attorney at David Bindrup Law Firm to ensure that all administrative responsibilities have been met as occasionally, probate may still be necessary based on the individual circumstances.

Probate is almost always necessary if someone dies with only a Last Will and Testament and not a trust.  People are often confused by this, because a common misconception is that a Last Will and Testament avoids probate.  Meeting with a David Bindrup Law Firm attorney can help you better understand why probate may be necessary, and how to efficiently navigate the process.  Essentially, a Last Will and Testament may determine to whom the assets are given but does not necessarily avoid the probate process altogether.  If there is no valid Last Will and Testament, state law will dictate how the assets are distributed.  A cost-free consultation with David Bindrup Law Firm can help you determine how the assets will be distributed, what steps are needed to start the process, and how long the probate process will take.

Probate ends once all of the assets and liabilities of the deceased person have been addressed by the Court, including allowing time for any potential unknown creditors to file claims.  One of the things that contributes most to the length of probate is the creditor period.  During probate, there is an open period that occurs so that unknown creditors can file claims in the estate.  Unknown creditors are creditors you may not be aware of who are owed money by the deceased person.  They are noticed of the probate process by publishing a Notice to Creditors in a local legal publication.  This important step makes sure that once they have been given sufficient notice, creditors are barred from going after estate assets for alleged debts.

It’s important to consult a David Bindrup Law Firm so that you can rely on their legal expertise in ensuring all of the necessary steps are followed in the probate process.  If the attorney missteps, potentially weeks or months can be added to the probate process.  This becomes expensive for a beneficiary who may be maintaining the Estate expenses, like mortgage, utilities, insurance, HOA fees, etc., while the probate is ongoing.

Clients may think they can avoid probate if they’re not interested in selling or distributing the deceased person’s assets.  However, probate is the only way to transfer an asset from a deceased person’s name to their heir (person who inherits under the law) or beneficiary (person who inherits under a Last Will & Testament).  Without completing the process, assets cannot be transferred and potentially those assets can later be lost.

Moving forward with the probate process ensures that when you are ready to sell or liquidate the asset, you can do so.  One common occurrence is that someone passes away with a house in their name and no trust.  This house would then need to go through probate, whether the deceased person had a Last Will & Testament.  However, if a family member moves into the house and just continues paying the mortgage and utilities, they may think they have “escaped” the probate process.  The problem with this scenario is that mortgages almost always have an “acceleration” clause, whereby when the person on the mortgage dies, the mortgage company can call the loan due, whether or not the mortgage is still being paid.  Because of this, people who do not go through probate but instead just “assume” the assets may be subject to foreclosure or refinancing issues down the road.  While this may be a risk they’re willing to take, if you are supposed to split the assets with other family members, you’ll want to be sure that you are repaid for the upkeep of the house and the payment on the mortgage, right?  The correct way to handle this situation is to go through the probate process so that assets are properly titled, and everyone receives that to which they are entitled.

It is never too late to open probate.  While opening probate early can help make sure you are fully aware of all the assets and that nothing is turned over to unclaimed property, probate can be opened later.  Sometimes there is an asset no one is aware of that suddenly pops up years after a loved one passes.  Sometimes there doesn’t seem to be a reason to go through probate when the mortgage is still being paid by family members living in the house.  However, all these scenarios present potential issues:  what about the equity in the house from the deceased person’s date of death to present day?  What if the assets aren’t being properly managed?  Who is repaid for the expenses maintained on the assets in the meantime?

Meeting with a David Bindrup Law Firm probate attorney can help you sort through these issues and get the answers you need. 

As for the distribution of assets once all debts have been addressed, state law dictates as follows:

  • If a person passes away and is married, their estate goes ½ to their spouse and ½ to their legally adopted or biologically born children.  If the person has more than one child, the children split 2/3 and the spouse gets 1/3.
  • If a person passes away and is married but does not have children, the estate goes ½ to their spouse and ¼ to the deceased person’s mother and ¼ to the deceased person’s father.   If either the deceased person’s mother or father are not living, the entire ½ goes to the surviving parent.
  • If the person passes away and is married but does not have children or living parents, the estate goes ½ to their spouse and ½ is split among their siblings (including half-siblings).  If any of their siblings have already passed, that sibling’s share goes to that sibling’s legally adopted or biologically born children equally.
  • If you have questions regarding other potential scenarios, please reach out to David Bindrup Law Firm for a free consultation with an experienced probate attorney to review what would take place under state law.

If you die without a will, the legal term used is called “intestate.”  By contrast, dying “testate” means you die with a will.

When someone passes away without a Last Will and Testament, state law determines how their assets are distributed.  State law also determines who has priority to serve as the person in charge of the probate.  When you die without a will, this person is called the administrator.  One requirement is that the administrator have a co-administrator who is a resident of the State of Nevada.  David Bindrup Law Firm probate attorneys can help you navigate these requirements and procedures, and that starts with a cost-free consultation to better understand the probate process.

When someone passes away, probate takes place in the state in which the person resided at the time of their death.  However, if they own real property (land) in another state, then a second (ancillary) probate takes place in the state in which they also own real property.  As for bank accounts, etc., those will be handled in the residential state probate.

Depending on the estate, the second or ancillary probate may be shorter or less intense.  Please consult an attorney at David Bindrup Law Firm to assist you with finding a reputable attorney who can help you outside of the State of Nevada if you have the need, while also efficiently managing the assets subject to the State of Nevada.

Every law firm has a unique approach to probate, so it’s important that you find one that resonates with you, especially when you are at your most vulnerable.  Our indisputable level of care and attention helps families navigate the probate process:  

  • Extensive Probate Law Experience – With years of focused experience in probate throughout the State of Nevada, we know the system inside and out.
  • Meticulous Attention to Detail – Probate requires precision. From filing deadlines to asset inventories, we ensure nothing is overlooked that could delay or complicate your case.
  • Deep Knowledge of Nevada Probate Courts – Every state (and even county!) handles probate differently. Our knowledge of Nye County and Clark County courts and procedures helps us guide you efficiently.
  • Client-Centered Approach – We understand this is a difficult time. We take the time to explain every step, answer your questions, and give your family peace of mind while quickly resolving the outstanding issues.

 

Often, families have to navigate this process while they are out of state, leaving them to rely solely on those they select to work through the probate process.  Rest assured, David Bindrup Law Firm keeps clients well-informed, abides by deadlines set by the client and the courts, and helps ensure there is good communication throughout the probate process, no matter where you reside.

Depending on the estate, the second or ancillary probate may be shorter or less intense.  Please consult an attorney at David Bindrup Law Firm to assist you with finding a reputable attorney who can help you outside of the State of Nevada if you have the need, while also efficiently managing the assets subject to the State of Nevada.

The best way to avoid probate is by utilizing estate planning tools to avoid the probate process, including a revocable living trust.  A Trust allows administration of a deceased person’s estate to be distributed outside of court supervision, which allows that process to be quicker and private.

In probate, you must disclose all of the assets of the estate as well as all of the debts.  Few of us would want our bank statements or credit card bills to become public record.  By utilizing a Trust, you’re able to keep that information private.

Another benefit to avoiding probate is that you don’t have to pay the probate costs as most of the work is done by a Trustee of your choosing.

When assets are distributed in probate, you are typically unable to control when and how those assets are distributed.  This means assets may be distributed to a known drug addict, someone going through bankruptcy, etc.  By placing assets in a Trust, you can control the distribution to make sure your legacy has a lasting impact on your beneficiaries.

For most people, they need more estate planning documents than just a Last Will and Testament and they rely on a Revocable Living Trust.  A Trust allows clients to name who is in charge when they die, maintain control of their own assets if they are able, name who can act for them if they are alive but incapacitated or unable to manage their assets, and distribute those assets when they pass outside of court oversight.

While some clients may rely on deeds upon death or transfer upon death to avoid needing a Last Will and Testament, a Last Will and Testament does more than just name who is in charge and who inherits when you pass away.

Wills can decide for minor children or even yourself if you become incapacitated.  Wills can specify cremation or burial plans and ensure that your body is laid to rest as you desire.

To better understand your own options regarding estate planning, meet with an experienced David Bindrup Law Firm attorney at one of our three offices in Henderson, Las Vegas and Pahrump so we can assist you in educating you regarding these important considerations.

Locations

Henderson Office

10424 S. Eastern Ave., Ste. 101
Henderson, NV 89052

Las Vegas Office

9030 W. Cheyenne Ave., Ste. 210
Las Vegas, NV 89129

Pahrump Office

1321 S. Hwy 160, Ste. 8A
Pahrump, NV 89048

Phone

702.465.0888

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